- 9 -
moneys in the promotional account could be withdrawn when
petitioner rendered special event promotions, such as television
or radio advertising. Colgate agreed to pay petitioner the cost
of performance, provided the total payment did not exceed the
amount in the fund for the 6-month period. Furthermore, the
Colgate agreements provide that "Monies available for any one
promotional period must be earned by the dealer during that
period." In terms of payment, the Colgate agreements provide:
Payment will be made to the DEALER upon receipt of the
Certificate of Performance which must indicate in the
"Remarks" section the Jobber's invoice number(s) if invoiced
by Jobber; a copy of the applicable short term agreement
which indicates the number of cases shipped in support of
the COLGATE sponsored short term promotion(s); and
documentary proof (script/story/board, tear sheet of
rotogravure, and any other appropriate proof of performance
as may be required) satisfactory to COLGATE that the
"SPECIAL EVENT" performance was rendered as required under
the Terms and Conditions of this agreement. Such payments
may not be used to reduce, or as set off against, the sale
price of any COLGATE product, nor is any amount claimed to
be due hereunder to be deducted by the DEALER from any
invoice or bill for COLGATE products. In no event shall
COLGATE have any liability to make payment unless proof of
performance is submitted within 30 days after the
termination of the performance period.
In contrast to the foregoing, most of the vendors that
maintained promotional accounts with petitioner had only oral
agreements. The vendors who had oral promotional account
agreements used the promotional funds to pay for product
advertising. They also used the funds to make cash payments to
petitioner's member stores at petitioner's annual food show.
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Next
Last modified: May 25, 2011